Judging Freedom - Not Easy To Prove Libel - For Good Reason Sarah Palin Libel Claim rejected by a Jury

Episode Date: February 15, 2022

Jury rules against Sarah Palin in her New York Times defamation case.#SarahPalin #NYTimesSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, February 15, 2022. It's about 3.30 in the afternoon on the east Coast of the United States, and news has just broken about two or three minutes ago that the jury in the Sarah Palin versus the New York Times case has found in favor of the New York Times. I thought the case was going to go the other way when the editors and copy editors for the New York Times got on the witness stand and acknowledged they made a mistake. But libel law is not intended to be equal. It's intended to favor the journalist so that journalists will be free to have breathing room when they make comments about public figures. So Governor Palin sued over an editorial in the New York Times, which purported to link her words spoken about the Second Amendment and the right to keep and bear arms to a mass killing that occurred in Phoenix, Arizona, in which a federal judge was assassinated, and there was an attempt to assassinate the Congresswoman, now the former Congresswoman, Gabby Giffords. Congresswoman Giffords survived, but the judge and four or

five others did not. New York Times acknowledged that it made a mistake, its fact-checkers made a mistake, its copy editors made a mistake, and the editorial should never have been published. Now, that's not enough to impose legal liability on the Times because Mrs. Palin is a public figure. And in America, in order to sue a public figure, the public figure must, in order for the public figure to sue, the public figure must show that the publication was made with knowledge of its falsity or with reckless disregard to whether it was true or false. That phrase, knowledge of falsity or reckless disregard of whether it's true or false, is known in the law as actual malice. It's probably a bad phrase. It's not malice like hatred or evil or a hard heart, but it's a phrase that the Supreme Court in a famous case called New York Times against

Sullivan, yes, the same New York Times, crafted in 1964. Mrs. Palin's lawyers were unable to persuade the jury that the Times had engaged in actual malice. There was no evidence that the Times knew that the statement was false when they published it. In fact, that's extremely rare. But there was evidence from which a jury could infer that the Times was reckless in its concern for the truth. And the jury didn't believe that. Again, simple mistake, simple negligence. Oh, shucks, I should have looked at it twice. I read one thing. I thought I was reading another. That is not enough when the plaintiff is a public figure. You may not like that law. There are justices of the Supreme Court that don't like that law. I like it because it encourages journalists to express opinions. It liberates

journalists to write. Now, because Mrs. Palin is a public figure, she can go on CBS or CNN or Fox or Newsmax or wherever she wants to go and denounce the New York Times and point out how wrong it is. Theoretically, the public figure has a megaphone as great as the defendant she is suing. That is at least the theory of Times against Sullivan. The other theory of it is that newspapers, journalists, the media should not be constrained in expressing opinions, as long as there is a sound basis for it. But again, I thought it was going to go the other way. You know, the judge is a friend of mine, Judge Jed Rakoff, the brilliant, brilliant and gifted judge, did something that's rarely done. While the jury was deliberating, he told the lawyers, however this jury rules, I'm going to throw the case out. Now, that is very, very unusual. If the judge believes

that the case doesn't meet the legal standards, he shouldn't let it go to a jury. Why did he let it go to the jury? Because he had thrown the case out once before, and the Federal Appeals Court, the United out once before and the federal appeals court the united states court of appeals for the second circuit which sits across the street from him in lower manhattan said you were wrong you're going to let it go to a jury so he let it go to a jury and while the jury was liberating he said however they rule i'm going to throw it out well he doesn't have to do that now because the jury the jury agreed with him. I think the jury did the right thing for freedom of speech,

and this difficult standard that makes it very difficult for public figures to sue is balanced out by the advantages it confers upon journalists, who are, of course, the eyes and ears of all of us. Judge Napolitano, judging freedom.